I'm a financial journalist and author with experience as a lawyer, speaker and entrepreneur. As a senior editor at Forbes, I have covered the broad range of topics that affect boomers as they approach retirement age. That means everything from financial strategies and investment scams to working and living better as we get older. My most recent book is Estate Planning Smarts -- a guide for baby boomers and their parents. If you have story ideas or tips, please e-mail me at: deborah [at] estateplanningsmarts [dot] com. You can also follow me on Twitter

Will The Supreme Court Legalize Same-Sex Marriage This Term?

It’s never easy reading the tea leaves as to which cases the Court will accept for review, let alone how it will rule. But most of the speculation revolves around Chief Justice John Roberts and Justice Anthony Kennedy. Photo: Wikipedia

This is likely to be the term that the U.S. Supreme Court considers the constitutionality of the federal Defense of Marriage Act or DOMA. There is also an outside chance that the Supreme Court will rule on whether same-sex couples must once again be able to marry in California.

DOMA defines “marriage” and “spouse” as limited to one man and one woman, and bars federal recognition of all same-sex marriages. This means that DOMA prohibits all types of federal benefits to spouses of same-sex marriages in states that have recognized gay marriage. And DOMA allows states that prohibit same-sex marriages to deny legal recognition to same-sex marriages entered into in other states.

So far, the Court has three federal cases it could decide to review. Each of these cases involve federal benefits–not a state’s right to ignore same-sex marriages that are valid in other states.

In Windsor v. United States, Edith Windsor was denied the marital deduction for estate taxes paid after the death of her spouse, Thea Spyer. The U.S. District Court for the Southern District of New York agreed with Windsor that DOMA violated her federal equal protection right. An appellate case is now pending in both the Second Circuit Court of Appeals and the U.S. Supreme Court.

The Court could accept some or all of these cases. Pundits assume Massachusetts will be the case accepted for review. With this case, there is a wild card: Justice Elena Kagan may recuse herself (not participate in the decision) because she was previously involved with the Gill case as Solicitor General. Her recusal would only apply to this case, but could be problematicbecause if there is a tie, the lower court’s ruling would remain standing.

Finally, there is one state law case out of the Ninth Circuit. Perry v. Schwarzenegger, now known as Hollingsworth v. Perry, which struck down Proposition 8 (which would have made same-sex marriage illegal in California). The backers of Prop. 8 have asked the Supreme Court to reverse the decision of the Ninth Circuit. If the Supreme Court declines review, same-sex couples would again be permitted to marry in California, as was the case for several months in 2008, prior to the passage of Prop. 8.

It’s never easy reading the tea leaves as to which cases the Court will accept for review, let alone how it will rule. The Supreme Court is typically split into a liberal bloc of four justices (Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer); a conservative bloc of five justices (Justices Antonin Scalia, Samuel Alito, Clarence Thomas and Anthony Kennedy), and Chief Justice Roberts.

Scalia, Alito and Thomas are regarded as “originalists” who generally believe that the Constitution was set in stone at the time it was signed, and is not subject to evolving standards. They also tend to believe that the ordinary meaning of a statute should govern, which is a problem since the Constitution never contemplated gay marriage. Most court watchers believe that these three would uphold DOMA and/or Proposition 8, preventing federal recognition of same-sex marriage.

Justices Breyer, Ginsberg, Sotomayor, and Kagan are likely to vote in favor of overturning DOMA and Proposition 8. It is less certain whether they are now prepared to find in favor of a broad right to gay marriage in all states.

But most of the speculation revolves around Chief Justice John Roberts and Justice Anthony Kennedy. As he showed in his decision upholding the Affordable Care Act earlier this year, Chief Justice Roberts does not always side with the conservative wing of the Court. He is strongly opposed to affirmative action on equal protection grounds; will he also invoke equal protection to strike down DOMA?

Two cases give many people great hope for Kennedy’s support of DOMA’s repeal. In 1996, in Romer v. Evans, he defended gay rights. Seven years after Romer, Justice Kennedy defended gay rights in the landmark case Lawrence v. Texas. Writing for the majority, he defended the right of same-sex couples to engage in any sexually intimate behavior in private without government intervention.

But Kennedy has gone out on a limb to protect state rights to govern themselves. In 2006, in Gonzales v. Oregon, he supported a state’s right to permit assisted suicide. And recently, in Arizona v. United States, he voted with the majority in support of the enforcement of Arizona’s strict immigration laws. His favor of state’s rights might push him to uphold California’s DOMA statute at issue in Hollingsworth.

Several of the opinions were issued “as applied.” This means the court below merely addressed how DOMA was applied in the particular case before it. The Supreme Court could overturn the application of DOMA in an “as applied” case, and the opinion could be written to apply only to the parties involved in that case. DOMA itself could be left standing. Golinski, Gill, Massachusetts and Windsor are all “as applied” cases. It is likely that if the Court were to accept any of these cases it would be to issue a more far-reaching ruling.

If the Court were to accept one or more cases this week, the first dates available on the Court’s calendar to hear parties argue their case are in January. The Court typically decides its most controversial cases towards the end of a Term, which may mean no ruling on DOMA until June 2013.

Post Your Comment

Post Your Reply

Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

Article V provides for amendments to the Constitution. I was referring to interpretations of the Constitution through judicial opinions. I did not intend to imply that the Constitution itself cannot be or has not been amended.

No, I’m sure you didn’t intend that. But, I am equally sure that Scalia, Alito and Thomas absolutely DO “believe that the Constitution was set in stone at the time it was signed, and is not subject to evolving standards”.

And therein lies the problem. I’m not quibbling with YOU; I take issue with them and their anti-equality, anti-”justice for ALL” stance.

The problem is we have too many people without a proper education and the inability to use reason. The above poster is one of them. You think that that any opposition to a lifestyle many disagree with, and find perverse, is “ANTI-. None of that matters. What maters is if the Constitution “protects” or gives “rights” to those groups. If it does not then Congress must pass Amendments. Judges should not be “expanding” words and Amendments to cover all manner of things simply because you believe it is fair.

No. Gender requirements for marriage are not considered a violation of any Constitutional Amendment. The Equal Protection clause does not cover every type of citizen. Seniors cannot attend Grade School. Children cannot drive and the same gender cannot marry. Since the ban also effect Heterosexuals (two Heterosexual men cannot marry) your point is moot.

I’m so sick of this shit GOD mad us human and human meant to be coupled that’s why god make 2 kind of sex in human that they both live togather as a couple if the the human’s born to be Homo or gay then god made only one sex in all humanity

That’s an interesting viewpoint, but it has nothing to do with law, which is what the courts are concerned with. The question here is whether the federal government may deny recognition to marriages validly entered into in jurisdictions that allow for it. Whether or not you (or anyone else for that matter) find it distasteful is not a question of law and therefore is immaterial.

Personally believe that the Full Faith clause applies to Judgements and not forcing one sovereign to substitute it’s statute with another just because they are contrary to one another….think I read that somewhere before….